constitutional law essay

Terrorism legislation v. EC human rights

In seeking to critically discuss the impact of recent terrorism legislation on rights recognised under Article 5 of the European Convention on Human Rights (ECHR) 1950 (implemented domestically via the Human Rights Act 1998), this essay will first look to recognise what rights under Article 5 are taken to consist of in practice to look to put this discussion into context. This is because it will also be necessary to look to show an understanding of as to how offences like acts of terrorism are sentenced domestically and the theory behind sentencing more generally. Then, more specifically, in view of this discussion's key subject matter, there is a need to consider as to how legislation pertaining to the prevention of terrorism has impacted upon the appreciation of the rights recognised under Article 5 of the ECHR 1950 in practice. Finally, this essay will look to conclude with a summary of the key points derived from this discussion in relation to the impact of recent terrorism legislation on rights recognised under Article 5 of the ECHR 1950.

The recognition of Article 5 of the ECHR 1950 provides every individual has the right to liberty and security of the person as part of what is a 'compound' concept since security of the person has not been separately interpreted by the courts to date. [1] In addition, Article 5 of the ECHR 1950 has served to provide for the recognition of right to liberty subject only to their being either a lawful arrest or detention under certain circumstances including arrest on suspicion of a crime or the perpetration of a terrorist act. Moreover, it has been recognised that Article 5 provides for the right of an individual to be informed in a language they understand of the reasons for their arrest along with any charge that has been laid against them. Furthermore, individuals must also have the right of prompt access to judicial proceedings to determine the legality of an individual's arrest or detention and to trial within a reasonable time or release pending trial along with the right to compensation where there is an arrest or detention contrary to Article 5 of the ECHR 1950. Therefore, there are key rationales involved with an effective sentencing policy's development founded upon clear purposes to optimise its powers. [2]

Such aims and purposes regarding an efficient sentencing system are largely focused upon achieving retribution, deterrence, rehabilitation, restorative justice, incapacitation and desert founded upon a specific offenders’ culpability. Such an understanding of the development of an effective policy of sentencing is ably supported by much celebrated German philosopher, Immanuel Kant. [3] Kant’s work marked the beginning of modern theories of punishment as he argued the only morally legitimate justification for sentencing is it is deserved by the offender and appropriately apportioned according to the nature and seriousness of the offence the offender has been accused of perpetrating. [4] But many people the world over are still fixated with the argument any sentencing policy developed within any nation state's legal system should also account for the fear of crime and its effective prevention since they should be considered important functions of any developing policy. [5] Therefore, a system of sentencing policy seeks to guarantee individual offenders convicted of crimes receive the appropriate sentences to achieve consistency and fairness in the sanctions dealt out relative to this prime purpose to better manage the conflict between individual liberty under Article 5 of the ECHR 1950 [6] and the collective interests of society.

Accordingly, the system of sentencing that should develop domestically for dealing with acts of terrorism is best described as being a process through which government actors are empowered to intrude on an individual’s right to liberty and autonomy to prevent crime and sanction any potential wrongdoing. [7] Therefore, the general consensus is that any policy of sentencing should have looked to find a balance between these aims and objectives in looking to account for crime-prevention goals and apportion punishment both fairly and consistently for all offenders. [8] With this in mind, under sections 62 and 63 of the Terrorism Act (TA) 2000 (along with section 17 of the Terrorism Act (TA) 2006) the UK seems to have looked to assert universal jurisdiction over a whole array of terrorist offences meaning anyone who commits any of these offences internationally so as to impact upon the UK will fall within domestic authorities jurisdiction. [9]

It has also been recognised, however, that under the Anti Terrorism, Crime & Security Act 2001 a religiously aggravated element to crime has been introduced that involves imposing higher penalties upon offenders who are motivated by religious hatred. This has since been evidenced by the decision in R (on the application of Al-Jedda) v. Secretary of State for Defence. [10] In this case A, who had been born in Iraq, had been granted asylum in the UK and was later granted British nationality before he travelled to Iraq in 2004 and was detained by British armed forces on suspicion of terrorist activities subject to periodic reviews. A, therefore, argued his detention breached his rights under Article 5(1) of the ECHR 1950 that states “Everyone has the right to liberty and security of person" so “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law". However, in R (on the application of Al-Jedda) v. Secretary of State for Defence [11] it was held that refusing a claim for judicial review and rights under the HRA 1998 were capable of being overridden by a United Nations (UN) Security Council Resolution. The reason for this is that the UK’s authorisation under UN Security Council Resolution 1546 of the 10th of June 2004 to detain A could be considered an obligation under the UN Charter 1945 that overrode the UK’s obligation under Article 5 of the ECHR 1950. Therefore, the UK was entitled to not apply Article 5 of the ECHR 1950 to the extent that was permitted by UN Security Council Resolution 1546 based on the facts of this case.

As a result, some significant concerns have arisen from out of the fact that 'terrorism's' definition under the TA 2000 (now TA 2006) is too vague and excessively broad. [12] This is because the TA 2000 served to criminalise not only those activities generally accepted to be ‘terrorist’ in nature, but also has been taken to include lawful gatherings and demonstrations amongst other matters along with other forms of behaviour that, although unlawful, could not be considered 'terrorism'. [13] Section 1(1) of the TA 2000 defined 'terrorism' as including where - (a) the action falls within subsection (2); (b) the act or threat is meant to influence the government, an international organisation or to intimidate the public; and (c) the use or threat is made to advance a political, religious or ideological agenda. [14] Under section 1(2) of the TA 2000 it has then been recognised that action under this subsection involves - (a) serious violence; (b) serious property damage; (c) the endangerment of another's life; (d) creates a serious risk to the public; or (e) is designed to seriously interfere with an electronic system. [15] The problem with the overly broad nature of the anti-terror laws put in place is they serve to trigger executive powers that are very restrictive regarding the recognition of both individuals and communities human rights under the ECHR 1950 including Article 5 often with reduced judicial oversight. [16] Therefore, the use of such executive powers should be confined to those circumstances when such severe restrictions can truly be deemed 'necessary' so there is a need for the laws to be narrowly drafted and proportionate to the legitimate aim pursued – protecting national security – rather than ostracising whole communities. [17]

To conclude, it is clear that the application of the law in relation to the prevention of terrorism has proved to be somewhat complex in view of the recognition of human rights under the ECHR 1950 via the HRA 1998. But it is interesting to note that, with regards to Article 5 of the ECHR 1950 in particular, this provision must be read in accordance with other international legislation so that its remit could in fact be usurped. This is because it was recognised in R (on the application of Al-Jedda) v. Secretary of State for Defence [18] it was held that refusing a claim for judicial review and rights under the HRA 1998 were capable of being overridden by a United Nations (UN) Security Council Resolution. The reason for this is that the UK’s authorisation under UN Security Council Resolution 1546 of the 10th of June 2004 to detain A could be considered an obligation under the UN Charter 1945 that overrode the UK’s obligation under Article 5 of the ECHR 1950. Therefore, the impact of legislation seeking to prevent instances of terrorism on Article 5 of the ECHR 1950 has proved to be substantial in that this provision will not be recognised where there is a suspicion of acts of terrorism having been perpetrated.

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